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Waterman v. Board of Commissioners

United States District Court, D. Kansas

June 26, 2018

BRIAN MICHAEL WATERMAN, Plaintiff,
v.
BOARD OF COMMISSIONERS, et al., Defendants.

          ORDER

          Sam A. Crow, U.S. District Senior Judge

         This case is before the court for the purpose of screening plaintiff's pro se complaint and two recently filed motions to amend the complaint. The court proceeds pursuant to 28 U.S.C. § 1915A.

         I. Pro se standards

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         II. Screening standards

         Title 28 United State Code Section 1915A requires the court to review cases filed by prisoners seeking redress from a governmental entity or employee to determine whether the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted. When deciding whether plaintiff's complaint “fails to state a claim upon which relief may be granted, ” the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. The court accepts the plaintiff's well-pled factual allegations as true and views them in the light most favorable to the plaintiff. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).

         The court, however, will not accept broad allegations which lack sufficient detail to give fair notice of what plaintiff's claims are. Section 1983 plaintiffs must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.” Robbins v. Oklahoma ex rel. Dep't of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008). This can be particularly important in prisoner litigation. Gee v. Pacheco, 627 F.3d 1178, 1185 (10thCir. 2010)(“A prisoner claim will often not be plausible unless it recites facts that might well be unnecessary in other contexts.”).

         III. Plaintiff's complaint and the motions to amend

         Plaintiff's complaint names the following persons as defendants: Pat Collins, a member of the Board of Commissioners of Cherokee County; Cory Moates, a member of the Board of Commissioners of Cherokee County; Neal Anderson, a member of the Board of Commissioners of Cherokee County; David Groves, Sheriff of Cherokee County; Michelle Tippie, Captain of the Cherokee County Jail; Ayrek Smith, a correctional officer at the jail at relevant times alleged in the complaint; Amanda Phillips, a shift supervisor at the jail; April Macafee, a sergeant at the jail; Thomas Degroot, an officer at the jail; Kristin Wagner, a nurse who does work at the jail; and Curtis Nida, a correctional officer at the jail. The caption of the complaint also lists the ”Board of Commissioners” as a defendant. The court assumes plaintiff is suing the Board of Commissioners of Cherokee County.

         In Count I plaintiff alleges excessive force and inadequate training and supervision. More specifically, he claims that on September 8, 2017, defendant Aryek Smith with both hands pushed plaintiff from the back into plaintiff's cell. Plaintiff alleges that he suffered neck pain from a whiplash-type injury for which he received medication. Plaintiff further alleges that defendant Smith and another correctional officer employed excessive force by tasing an inmate other than plaintiff. Plaintiff claims that there is inadequate training, supervision and discipline of jail officers which amounts to deliberate indifference to the inmates' rights. Finally, plaintiff asserts that his injury was not evaluated by defendant Wagner until September 12, 2017, contrary to an unspecified “excessive force policy.” In Count II, plaintiff alleges a violation of the Prison Rape Elimination Act. Plaintiff asserts that defendant DeGroot shut plaintiff in a closet with him and made plaintiff get naked while Degroot's body camera was recording. He claims that the same happened after every court date and attorney visit. He also claims that defendant Tippie allowed this to happen.

         Plaintiff makes a number of other allegations in Count II. He contends that defendant DeGroot and Tippie have denied plaintiff multiple disciplinary hearings in violation of jail policies and plaintiff's constitutional rights to due process. Plaintiff contends he was told by them that they have no obligation to do so and that it is a waste of time.

         Plaintiff alleges that Degroot, Tippie, Macafee, Phillips and Nida have retaliated against plaintiff for filing grievances, resulting in lockdowns and segregation. He claims that defendant Groves has had plaintiff moved to a different jail. He asserts, somewhat vaguely, that he was moved again because of defendant Tippie. Finally, he asserts that he is in lockdown for asking to speak with defendant Macafee and has been punished for speaking with defendant Nida.

         In Count III, plaintiff asserts that the jail has an unconstitutional policy which violates plaintiff's rights under the Fifth, Eighth and Fourteenth Amendments. Plaintiff claims that under this policy he has lost 33 pounds (23 pounds since transferring to the Cherokee County Jail on February 1, 2018), but is not permitted to eat extra portions even though he has been diagnosed with hypoglycemia. The policy allegedly does not allow extra food portions for an inmate until his body mass index is below 18.

         Plaintiff has filed a motion for leave to amend the complaint (Doc. No. 10) to add Sgt. Christina Manes as a defendant. Plaintiff alleges that on June 1, 2018, Sgt. Manes refused to let plaintiff out to eat breakfast with everyone, mistakenly stating that plaintiff was on administrative lockdown and that on June 3, 2018, she made plaintiff wait until after 10:00 p.m. to allow plaintiff an hour out with general population. Plaintiff further alleges that on June 16 and 17, 2018 Sgt. Manes was supervising plaintiff while he was handcuffed and was attempting to open a protein shake with his cuffs on. Additionally, plaintiff asserts that Sgt. Manes “locked me down” for suggesting to another inmate that he file a grievance concerning Manes.

         Plaintiff has filed a second motion for leave to amend the complaint to add a claim against defendant Tippie. Plaintiff asserts that Tippie will not allow plaintiff to make copies ...


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